In the High Court of Kiribati
Criminal Jurisdiction
Held at Betio
Republic of Kiribati

Criminal Case No. 58 of 2003

The Republic

vs

Bobai Teteki

For the Republic: Ms Pole Tebao & Ms Ruria Iteraera
For the Accused: Mr Aomoro Amten

Date of Hearing: 3 November 2003

JUDGMENT

On Wednesday, 8th of last month, October, in the evening about 9 o'clock a truck owned by Turekau Tianuare and driven either by his son Bwaabu or his nephew Tenebo (it doesn't matter which) called at Teen's Bar at Bikenibeu. The other person on the truck was Tekaibeti. Turekau and Tekaibeti wanted to buy some more drink: Bwaabu and Tenebo were not drinking. At the Bar two men, Nenebo and the accused, Bobai, asked for a lift to Temaiku and Bonriki. Those on the truck agreed. Nenebo and Bobai got on board.

The truck went as far as Dr Tetaua's petrol station and stopped. The prosecution witnesses say the stop was to refuel and the petrol station was dry. Bobai said it was because Nenebo had had sufficient drink to be a nuisance and the other occupants wanted to get him off the vehicle. Bobai admitted that he himself had been drinking but was fully aware of what was going on. I am inclined to think (but it is irrelevant to the accused's guilt or otherwise) that it was a bit of both: the petrol station was dry and those on the truck used it as an excuse to try to get rid of Nenebo.

Certain it is that Nenebo, amidst argument, was put off the truck. The argument turned into a fight between Nenebo and Tekaibeti. Bwaabu and then Tenebo got off to try to break the fight up. Nenebo was lashing out: Bwaabu defended himself.

Turekau:

Tenebo went to help Bwaabu. I saw accused strike out, Tenebo ran to the side of truck, "The old man has stabbed me". He was holding on to his stomach. Tenebo ran round looking for help …… I saw Bobai hit Tenebo but not sure how. I was 3 or 4 m away. Accused aimed at the stomach.

Bwaabu:

Went to restrain them: I tried but Nenebo striking out at everybody – so I defended myself. That's when my cousin, Tenebo, struck Nenebo from behind. Accused standing behind us. After Tenebo had pushed Nenebo away, accused came and hit Tenebo. I heard blow land against abdomen. I saw him hit Tenebo. Tenebo ran away, holding on to his stomach. Crying out, ran for a bus at the petrol station. I had no weapon. I heard Tenebo "That man has stabbed" and pointing at accused.

Nei Keetia Ietimeta had been on the Otintaai Hotel bus which had come to the petrol station to refuel. She saw the fight and was out of the bus to watch:

I was 5m from accused and from fighters about same. Young man ran to me crying out, "That man stabbed": he indicated accused by pointing – he only man standing away from fighters. I asked deceased who had stabbed him and deceased pointed at accused. He spoke at first with a firm voice, gasped. Deceased went to driveway attendant Iotebwa.

I had no hesitation in allowing evidence to be given of Tenebo's complaint that the accused had stabbed him. I immediately remembered Bedingfield's case (R v Bedingfield [1879] 14 Cox CC 341). Tenebo's complaint was a dying declaration. The Director of Public Prosecutions preferred to argue that it was part of the res gestae and relied on Ratten v Reginam ((1971) 3 All ER 801). Whichever or both, the evidence was admissible.

The final witness as to what happened at the scene was the driveway attendant, Iotebwa Kaitaano. He confirmed that they had no fuel:

Fight. People on hotel bus got off to watch ….. Deceased came for assistance. I assisted to get him to hospital: on to Otintaai Hotel bus. I saw intestines protruding through fingers from left side. Didn't take us a minute to get to hospital.

I accept the honesty and reliability of these witnesses.

The accused simply denied that it was he who stabbed Bobai. He admitted that he had a bag with him and a knife in the bag but denied that he opened the bag. He did not much care about Nenebo: they were workmates but not close friends or relatives.

Beyond reasonable doubt the accused stabbed the deceased in the stomach: a deliberate attack without provocation.

Tenebo was still alive when he reached the hospital. Dr Yang examined him. Her report:

At 10:15 pm the patient was sent to hospital by bus. His left side of the abdomen got a stabbed wound about 5 cm also can see the part of intestine. 10:25 pm the patient died.

In Dr Yang's opinion the cause of death was loss of blood.

The accused is guilty of murder.

Dated the 6th day of November 2003

THE HON ROBIN MILLHOUSE QC
Chief Justice